This Call May Be Recorded (and sent to the Prosecution)

By: Blake Paradis

In New York City, an inability to pay for bail results in detention on Riker’s Island. In fact, over forty percent of New York City’s inmate population have not been convicted of a crime and are awaiting trial, in most cases for nonviolent misdemeanor offenses.[1]  Those held in detention are accused of crimes ranging from turnstile jumping to violent felonies. The largest factor uniting the detained? They are unable to pay for their own release.[2]

Those awaiting trial on Riker’s Island are forced to use the facility’s telephones to communicate with friends and family who are unable to visit the facility in person.  In many cases, these conversations include details about the person’s defense strategy. During these calls detainees may share private aspects of their case ranging from witness lists to acceptable plea deals.

Although detainees are warned before each phone call that their conversation “may be recorded” as per Department of Corrections (DOC) guidelines, “the Department shall record all inmate telephone calls and retain these recordings, except for those telephone numbers or persons or agencies that appear on the ‘Do Not Record List.’”[3] They are unaware of the purpose of such recordings. Currently, those qualified for the Do Not Record List are limited to attorneys, clergy, and treating physicians.[4]

Originally implemented by DOC to promote security on Riker’s Island and prevent contraband smuggling, these recorded phone calls are now being provided to the prosecution without question or delay. According to the same Operations Order, “when any law enforcement agency or any New York City District Attorney’s Office requests a copy of a recorded inmate telephone call, the request shall be immediately forwarded to the Deputy Commissioner for Legal Matters who shall review the request.[5] The Deputy Commissioner shall render a decision within three (3) business days.”[6] Absent within these procedures are defined parameters under which specific circumstances, if any, the DA would be precluded from receiving the desired recording.

Although detainees are warned that their calls “may be recorded” each time they use the phone, it is not clear that calls are not only being recorded, but subsequently sent to the District Attorney’s office to be used in litigation.  By obtaining these recorded phone calls, prosecutors benefit from private conversations with loved ones about proposed defense strategies.

Fortunately, the Court of Appeals opened the door to correct this injustice in People v. Marcellus Johnson.[7] Although the Court did not resolve the issue, the majority wrote “due to the possibility of prejudice inherent in the prosecutor’s use of inmate recordings, the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure.”[8] In fact, the concurrence went further and added “the current arrangement between the Department of Corrections and the District Attorney’s office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail.”[9]

In an exciting development, Judge Newbauer of the Bronx County Supreme Court, reiterated the sentiment from the Court of Appeals ruling; stating that prosecutors should not have carte blanche to “sift through any calls made to family members throughout a lengthy period of detention.”[10] Although Judge Newbauer did not find for the defense in this case, the interpretation of the facts are significant to her decision.

In People v. C.H., the prosecution produced recordings that demonstrated that the defendant was involved in an assault on another inmate while in detention. Indeed, the defendant acknowledged committing the assault and possessing contraband while detained on Riker’s Island. Given that DOC contacted the District Attorney’s office first about the defendant’s alleged criminal conduct within the facility, the recording seemingly coincides with the original intention of these procedures.[11] However, Judge Newbauer did take the opportunity to mention that “the People could have achieved the same result without resorting to improper means by requesting a judicial subpoena prior to trial.”[12]

Although defenders in New York have been unsuccessful in challenging this constitutionally questionable practice thus far, these two cases suggest a favorable ruling is on the horizon. Judge Newbauer specifically emphasized that “the information disclosed during the defendant’s calls were not part of family exchanges which serve to expose the defendant’s vulnerability in this matter to the prosecutor and moreover, they convey no information about strategy in the case on trial.”[13] She went on to say that, “the prospect of an alternate result in a case not so clearly invoking the People’s need for access to the calls should be sufficient to curtail the practice in the future. The obvious danger in bypassing judicial supervision of DOC recordings increases if the Court of Appeals decides that detainees’ consent to telephonic monitoring is not unlimited.”[14]

Now, with two opinions questioning the constitutionality of using recorded telephone calls of pre-trial detainees in litigation, it is crucial that defense attorneys continue to challenge introduction of these phone calls in suppression hearings. Presented with a case that does not involve criminality in Riker’s facilities, Judge Newbauer and her colleagues seem ready to put an end to this dubious practice.


[1] See Christopher Ingraham, Why we spend billions to keep half a million unconvicted people behind bars, WASH POST (June 11, 2015) https://www.washingtonpost.com/news/wonk/wp/2015/06/11/why-we- spend-billions- to-keep-half-a- million-unconvicted- people-behind- bars/.

[2] See Nick Pinto, The Bail Trap, NY TIMES (Aug. 13, 2015) http://www.nytimes.com/2015/08/16/magazine/the-bail- trap.html (stating that roughly 45,000 people are jailed each year in New York City because they cannot afford to pay bail).

[3] See DOC Operations Order No. 01/09, (3/9/2009) (implementing 40 RCNY §1-10(h)).

[4] See id.

[5] See id.

[6] See id.

[7] See People v. Johnson, 2016 Slip Op. 02552 (Apr. 5, 2016).

[8] See id.

[9] See id. (Pigott, J. concurring).

[10] See People v. C.H., 2016 Slip Op. 50884 (May 23, 2016) (emphasizing that prosecutors should not have unlimited access to pre-trial detainees’ phone calls).

[11] See id.

[12] See id.

[13] See People v. C.H., 2016 Slip Op. 50884 (May 23, 2016); See also People v. Johnson, 2016 Slip Op. 02552 (Apr. 5, 2016).

[14] See People v. C.H., 2016 Slip Op. 50884 (May 23, 2016).